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High Court Wraps Up Hearings on Federal Health Reform Law Case

Thursday, March 29, 2012

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High Court Wraps Up Hearings on Federal Health Reform Law Case

Thursday, March 29, 2012

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On Wednesday, the Supreme Court concluded up three days of oral arguments in the lawsuit challenging the federal health reform law, the Washington Post reports.

Wednesday's hearings consisted of a morning session on the severability of the law's individual mandate and an afternoon session on the overhaul's Medicaid expansion (Barnes/Aizenman, Washington Post, 3/28).

In the morning session of Wednesday's arguments, some of the justices "seemed open" to allowing the remainder of the overhaul to stand even if the individual mandate is deemed unconstitutional, the Associated Pressreports (Sherman/Yost, Associated Press, 3/28). Some observers noted that the justices' openness to allowing other provisions to stand could indicate that they have accepted that the individual mandate will be struck down (Stohr/Asseo, Bloomberg, 3/28).

According to AP, three liberal justices -- Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor -- asked questions that intimated they believe the law can stand without the minimum coverage requirement (Associated Press, 3/28). Sotomayor said, "The bottom line is, why don't we let Congress fix it" instead of eliminating the overhaul in its entirety (Bloomberg, 3/28).

Meanwhile, Chief Justice John Roberts and Justice Antonin Scalia -- both conservatives -- also asked questions that suggest they were leaning the same way (Associated Press, 3/28). Roberts noted that the law includes measures -- such as a provision related to Native American health care -- that are unrelated to the individual mandate (Bloomberg, 3/28).

Paul Clement -- the lead attorney for the plaintiffs -- argued that keeping portions of the health reform law without the individual mandate would leave a "hollow shell." He added, "Whatever you do, Congress is going to have options." Scalia questioned Clement's argument, saying, "You're telling us that the whole statute would fall" if the court struck down even one provision. Scalia added, "That can't be right" (Bloomberg, 3/28).

Clement continually tried to convince the justices that insurance regulations tied to the individual mandate in the law are key to how other provisions, including the health insurance exchanges, function. Kagan challenged that notion, noting that exchanges "function perfectly well in Utah without a mandate."

Clement countered that it would be better to strike down the whole health reform law than to allow it to "limp along" in a manner different than Congress intended. However, Ginsburg said, "There are so many things in this act that are unquestionably okay. Why make Congress redo these?" (Washington Post,3/28).

Uncertainty Among Justices

According to Politico, while most of the justices seemed opposed to eliminating the entire law, they also "were clearly worried about the consequences if they pull out pieces of the law and that throws the rest of the health care system into chaos" (Gerstein/Budoff Brown, Politico, 3/28).

Ginsburg said that if portions of the overhaul needed to be changed as a result of the high court's decision, "Congress can take care of it" rather than the courts. Kagan noted that it would represent a "revolution" for the court to guess which provisions Congress would have approved without the individual mandate (Kendall et al., Wall Street Journal, 3/28).

Scalia said it is "totally unrealistic" for the court to comb through the 2,700 pages in the health reform law (Gerstein/Budoff Brown, Politico, 3/28). "My approach would be to say that if you take the heart of the statute" -- referring to the individual mandate -- "the statute's gone" (Liptak, New York Times, 3/28).

Justice Anthony Kennedy, a likely swing vote, said it would be "more extreme" for the court to attempt to piece together the remaining parts of the overhaul. If they were to do that, "we would have a new regime that Congress did not order" (Gerstein/Budoff Brown, Politico, 3/28).

Justices Question States' Arguments Against Medicaid Expansion

In the afternoon session of Wednesday's arguments, the high court's liberal justices "hammered" states' arguments against the Medicaid expansion, Politico reports. Chief Justice John Roberts also seemed skeptical of the states' position (Haberkorn, Politico, 3/28).

States involved in the case have argued that the Medicaid expansion -- including the mandated coverage levels and the amount of money involved -- is unnecessarily coercive. The high court has noted previously that there are limits to what the federal government can require states to do to receive funds -- a condition cannot be "so coercive as to pass the point at which pressure turns into compulsion." However, it has yet to rule that the federal government has overstepped its bounds (Washington Post, 3/28).

Liberal Justices Assail Clement

Almost immediately after Clement began laying out the reasons the states believe the expansion is unlawfully coercive, Justice Elena Kagan interrupted him. She asked, "Why is a big gift from the federal government a matter of coercion?" She added, "It's just a boatload of federal money. It doesn't sound coercive to me."

Fellow liberal Justice Stephen Breyer aggressively questioned Clement on his claim that the federal government would force states to leave Medicaid entirely if they do not comply with the rules of the Medicaid expansion in the overhaul, Wall Street Journal's "Washington Wire" reports. Breyer noted that it is up to the HHS secretary to determine whether a state will be forced out of Medicaid and that administrative law requires the secretary to act reasonably.

Clement countered that the health reform law seems to suggest that the HHS secretary could have the power to force states to leave Medicaid, and that HHS officials previously have indicated that they might have to force states out if they refuse to comply with provisions in the Medicaid expansion (Kendall et al., "Washington Wire," Wall Street Journal, 3/28).

Conservative Justices Seek Reassurance

According to Politico, Roberts sounded unconvinced by the states' argument that the expansion amounts to an unreasonable demand. He noted that states have been receiving Medicaid money with federal requirements attached for years, so "they shouldn't be surprised that the federal government has decided to pull them" (Haberkorn, Politico, 3/28).

Although most of the conservative justices remained silent for a good part of Clement's arguments, they put Solicitor General Donald Verrilli through "a barrage of tough questions" ("Washington Wire," Wall Street Journal, 3/28).

Justice Samuel Alito noted that it would nearly impossible for states to turn down the influx of funding through the Medicaid expansion. He asked, "How could that not be coercion?"

Verrilli countered that the federal government's share of funding for the Medicaid expansion represents a generous offer. However, Roberts asked why -- if it is so generous -- the federal government feels it necessary to compel the states to participate ("Washington Wire," Wall Street Journal, 3/28)

According to "Washington Wire," the justices seemed to want Verrilli to offer some assurance that the federal government would not end a state's federal Medicaid funding, even if it refuses to comply entirely with the Medicaid expansion. Verrilli did not go that far, but he noted that the federal government and states typically are able to work out their differences on Medicaid ("Washington Wire," Wall Street Journal, 3/28).

A friend of the court brief filed by California Attorney General Kamala Harris and attorneys general in 11 other states estimates that the law's Medicaid expansion could extend health care to 11.2 million U.S. residents, including 1.9 million Californians.

Marian Mulkey -- director of the Health Reform and Public Programs Initiative of the California HealthCare Foundation, which publishes California Healthline -- said, "A lot of investment and energy is going into trying to improve Medi-Cal, enroll people in managed care, be transparent and accountable." She added, "Those are durable regardless of what happens with the Affordable Care Act ... Those investments will bear fruit down the road" (Jewett, California Watch, 3/28).

Daniel Zingale, senior vice president of The California Endowment, in a statement said, "Congress’s ability to regulate and correct the problems with the current health care market should be upheld. The Endowment remains confident the historic Affordable Care Act will lead to improved public health not just in California but across the country" (California Endowment release, 3/28).

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The Affordable Care Act is an important law that should be supported and is the culmination of many decades of hard bipartisan work. If, for politcal reasons, naysayers must insist it is unconstitutional, then why not review consitutionality of mandatory taxes, mandatory K-12 education and mandatory car insurance? Tax payers and medical insurance rate payers end up paying for those who choose not to pay for medical care - the uninsured - and at higher costs. Let's focus on proper implementation of the Affordable Care Act and not waste time and resources on petty politics.

March 30, 2012 at 4:16 PM

Clark Norwood

I think the intention of Justice Scalia's comment is that it is not the court's place to pick through the entire 2700 pages to find every bit of the legislation that is affected by the mandate that the case before them addresses. They need to determine if the mandate is constitutional or not then instruct the legislature that jammed it through without letting anyone read it, remember House speaker Pelosi said "we need to pass it to find out what's in it", to determine and remove affected portions of the law. It should be prohibited for any law to be passed without a majority of legislators having read and understood the law they are voting on. That is what we are paying them for is it not!

March 29, 2012 at 11:36 AM

James Roache PharmD

Scalia's comment that the SC cannot comb through 2,700 pages is ludicrous. My rebuttal is: If anyone had bothered to read the bill before passing it, we wouldn't be in this place wasting the Court's time and the taxpayer's money. Somebody, please take responsibility and read the darn thing. Judge Kagan's comments "Why is a big gift from the federal government a matter of coercion?" "It's just a boatload of federal money. It doesn't sound coercive to me" reveals her true liberal philosophy, that is, the money referred to belongs to the taxpayers, not the Federal Government. It is not a gift from the citizens, it is money taken from the citizens and used contrary to people's desires. Lastly, if this bill includes the mandatory coverage which it must, than is it not simply another tax, just like Medicare and Social Security? Interestingly, certain folks, including the Supreme Court Judges and the Congressmen who passed this act, are not mandated to be covered by it. Why not???